African Committee of Experts on the Rights and Welfare of the Child: Communication Procedure

Applies to/Se aplica a

Summary

Under Article 44 of the African Charter of the Rights and Welfare of the Child, any correspondence or any complaint from a State, individual or NGO denouncing acts that are prejudicial to the right or rights of the child shall be considered as communication. However, by 2011 the ACERWC had only received two communications, and had made a decision on one of these two.
A communication can be presented by individuals, including the child which has been a victim of a human rights violation or his/her parents of legal representatives, by witnesses, a group of individuals or by an NGO recognised by the African Union, a member State of the African Union, or by any institution of the United Nations system. A communication has to be in writing and cannot be submitted anonymously.
A communication can only be submitted after domestic remedies have been exhausted, and if the same issue has not been considered according to another investigation, procedure, or international regulation.
As an urgent measure, the Committee of Experts can make a request to the State party concerned to take provisional measures necessary to prevent any other harm to the child or children who would be victims of violations of the Charter.
After investigating a complaint, the Committee of Experts makes a recommendation to the State(s) concerned to ensure that measures are taken to prevent the recurrence of violations of the Charter.

1. Likely results from the use of this mechanism

Following the submission of a communication, the Committee of Experts will first take a decision on admissibility. If a complaint is found admissible, the Committee of Experts will investigate the complaint and take a decision on the merits of the case, and make recommendations to the State concerned. This may include compensation to the victim(s) of violations of the African Charter of the Rights and Welfare of the Child and measures to prevent a recurrence.
To prevent irreparable harm to the victim or victims of alleged violations of the ACRWC as urgently as the situation demands, the Committee of Experts may request from the State concerned to take provisional measures before a decision on the merits of the case, but after the complaint has been found admissible.

2. To which States does this mechanism apply?

The mechanism applies to those States that have ratified the African Charter on the Rights and Welfare of the Child, and have not entered a reservation to article 44. At the time of writing, Egypt is the only State party to the ACRWC that does not consider itself bound by article 44. A table of ratifications of the ACRWC is available at http://acerwc.org/ratifications/.

3. Who can submit information?

A communication can be presented by individuals, including the child which has been a victim of a human rights violation or his/her parents of legal representatives, by witnesses, a group of individuals or by an NGO recognised by the African Union, a member State of the African Union, or by any institution of the United Nations system.
A communication can also be presented by a State party to the ACRWC, and also by a State that is not party to the ACRWC, if it is in the best interest of the child.
The guidelines for the consideration of communications do not mention anonymity of the complainant, but it is likely that similar rules apply as for communications to the African Commission on Human and Peoples' Rights.

4. When to submit information?

A communication should be submitted to the African Committee of Experts on the Rights and Welfare of the Child within a reasonable period from the time local remedies have been exhausted. After exhaustion of local remedies, or where the complainant realises that such remedies shall be unduly prolonged, he or she can submit the complaint to the Committee of Experts immediately.
The ACRWC does not give a time limit but talks of reasonable time. It is therefore advisable to submit a complaint as early as possible.

5. Special rules of procedure or advice for making a submission?

How to write a complaint:

The communication procedure of the Committee of Experts is straightforward, and does not require legal representation. A complaint can be brought by the victim(s) of alleged violations of the ACRWC or their parents, or by another person acting on their behalf, or a group of individuals, including an NGO recognised by the African Union, a member State of the African Union, or by any institution of the United Nations system. If your NGO does not fulfil the last criteria, it is advisable to submit a complaint as a group of individuals.

For a complaint to be admissible, it needs to meet the following requirements:

it needs to include the name(s), nationality, and signature(s) of the person or persons filing it, or in case of an NGO filing the complaint the name(s) and signature(s) of the legal representatives, and evidence of the status of the NGO;

whether or not the complainant wishes his or her identity to be withheld from the State concerned, and why;

an address for correspondence, possibly including fax and/or email;

a detailed description of the alleged violations of the ACRWC, specifying date, place, and nature of the alleged violations;

the name(s) of the State(s) alleged to have violated the African Charter of the Rights and Welfare of the Child;

any steps taken to exhaust domestic remedies, or an explanation why an exhaustion of domestic remedies would be unduly prolonged or ineffective;

an indication that the complaint has not been submitted to another international settlement proceeding.

Emergency procedures:

According to Article 2 IV of the Guidelines, the Committee of Experts “may forward to the State party concerned, a request to take provisional measures that the Committee shall consider necessary in order to prevent any other harm to the child or children who would be victims of violations”.

6. What happens to the submission (how long will it take)?

Once a complaint has been received by the Secretariat of the African Committee of Experts on the Rights and Welfare of the Child, the Secretary will register it and make a summary, which will be circulated to all members of the Committee of Experts.
Before each session, a Working Group of the Committee of Experts will consider the admissibility of a complaint. The Committee of Experts will then decide on the admissibility during a regular session.
After a complaint has been declared admissible, the Secretariat will communicate this to the complainant(s). A communication will then also be sent to the State(s) concerned, with a request to comment on the communication in writing within three months.
Following this, the Committee of Experts or the Working Group may request additional information from the State(s) concerned or the complainant(s).
The Committee of Experts may requests the presence of representatives of the State(s) concerned and/or the complainant(s) in order to give additional clarifications relating to the communication. If one party is invited, the other party shall also be invited to be present and to make its observations, if it so wishes. The meeting of the Committee of Experts during which the complaint is considered is held in private.
According to article 3 of the Guidelines, the Committee of Experts “should take measures to ensure the effective and meaningful participation of the child or children concerned by the consideration of the validity of the communications and its author”. It is unclear what that means in practice.
Following the consideration of the complaint, the Committee of Experts will make a decision on the merits, either finding that the ACRWC has not been violated, or finding on a violation of the Charter, and making recommendations to the State(s) concerned. This may include compensation to the victim(s) of violations of the African Charter of the Rights and Welfare of the Child and measures to prevent a recurrence.
One of the members of the Committee of Experts will also be designated to monitor the decision, and will regularly report to the Committee of Experts.
The decisions of the Committee of Experts will then be submitted to Assembly of the Heads of State and Government of the African Union, and will be published after consideration by the Assembly.

7. History of the use of this mechanism

This mechanism has so far not been used for conscientious objection to military service, nor for issues of military recruitment of minors.